AMENDMMENT NO. 1 – SECURITIES PRUCHASE AGREEMENT
EXHIBIT
10.58
AMENDMMENT NO.
1 –
SECURITIES
PRUCHASE AGREEMENT
Amendment No. 1, dated as of February
14, 2008, (“Amendment”) to the Securities Purchase Agreement, dated January 8,
2008 (the “Securities Purchase Agreement”) by and between Amarillo Biosciences,
a Texas corporation (the “Company”) and Firebird Global Master Fund Ltd.
(“Firebird”). Capitalized terms used but not defined herein have the
meanings given to them in the Securities Purchase Agreement.
RECITALS:
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A.
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The
Company and Firebird are parties to the Securities Purchase
Agreement;
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B.
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The
Company has requested that Firebird consent to certain changes to the
Securities Purchase Agreement;
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C.
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Firebird
has agreed to accommodate the Company’s request on the terms set forth
herein;
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D.
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The
parties agree as follows:
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SECTION
1. AMENDMENTS
Section 1.1 Amendment to
Section 2.1 of the Securities Purchase Agreement. Section 2.1 of the
Securities Purchase Agreement is hereby amended and restated in its entirety as
follows:
2.1 Closing.
(a) On the
Closing Date (sometimes herein referred to as the “Initial Closing Date”), upon
the terms and subject to the conditions set forth herein, substantially
concurrent with the execution and delivery of this Agreement by the parties
hereto, the Company agrees to sell, and the Purchasers agree, severally and not
jointly, to purchase up to an aggregate of $1,000,000 of shares of
Preferred Stock with an aggregate Stated Value equal to such Purchaser’s
Subscription Amount and Warrants as determined by pursuant to Section
2.2(a). The aggregate number of shares of Preferred Stock sold
hereunder shall be up to 1,000. Each Purchaser shall deliver to the
Company via wire transfer or a certified check of immediately available funds
equal to their Subscription Amount and the Company shall deliver to each
Purchaser their respective shares of Preferred Stock and Warrants as determined
pursuant to Section 2.2(a) and the other items set forth in Section 2.2 issuable
at the Closing. Upon satisfaction of the conditions set forth in
Sections 2.2 and 2.3, the Closing
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shall
occur at the offices of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, or such other
location as the parties shall mutually agree. The Initial Closing Date
and the Second Closing Date (as defined in Section 2.1(b) below) are referred to
herein as a “Closing Date.”
(b) Second Closing. The
“Second Closing” which shall occur on or before the March 15, 2008 (the “Second
Closing Date”) unless terminated sooner by the Company. Subject to
the satisfaction or waiver of the conditions to the Second Closing, on the
Second Closing Date, each Purchaser who shall wish to purchase securities of the
Company in the Second Closing shall purchase and the Company shall sell to each
Subscriber, an aggregate of no more than $1,500,000 of shares of Preferred Stock
(“Second Closing Preferred Stock”) with an aggregate Stated Value equal to such
Purchaser’s Subscription Amount and Warrants as determined by pursuant to
Section 2.2(a). The aggregate number of shares of Preferred Stock
sold hereunder shall be up to 1,500. The Initial Closing and the
Second Closing shall be deemed to be the same closing even if the Securities
Purchase Agreement for each such closing is dated a different date.
(c) Conditions to Second
Closing. The occurrence of the Second Closing is expressly contingent on
(i) the truth and accuracy, on the Second Closing Date of the representations
and warranties of the Company and Subscriber contained in this Agreement except
for changes that do not constitute a Material Adverse Effect, (ii) continued
compliance with the covenants of the Company set forth in this Agreement, and
(iii) the non-occurrence of any Event of Default (as defined in the Note and
this Agreement) or an event that with the passage of time or the giving of
notice could become an Event of Default.
(d) Second Closing
Deliveries. On the Second Closing Date, the Company will deliver a
certificate (“Second Closing Certificate”) signed by its chief executive officer
and chief financial officer (i) representing the truth and accuracy of all the
representations and warranties made by the Company contained in this Agreement,
as of the Second Closing Date as if such representations and warranties were
made and given on all such dates, except for changes that do not constitute a
Material Adverse Effect, (ii) certifying that the information contained in the
schedules and exhibits hereto is substantially accurate as of the Second Closing
Date, except for changes that do not constitute a Material Adverse Effect, and
(iii) adopting and renewing the covenants and representations set forth in this
Agreement in relation to the Second Closing Date and Second Closing Preferred
Stock. A legal opinion nearly identical to the legal opinion referred to in this
Agreement shall be delivered to each Purchaser on the Second Closing Date in
relation to the Company, Second Closing Notes and Second Closing Preferred Stock
(“Second Closing Legal Opinion”).
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SECTION 2.
MISCELLANEOUS
Section
2.1 Prior
Agreements.
This Amendment shall completely and fully supersede all other and prior
agreements and correspondence (both written and oral) by and between the Company
and Firebird concerning the subject matter of this
Amendment. Except as expressly amended hereby, the Securities
Purchase Agreement shall remain in full force and effect.
Section
2.2 Counterparts. This Amendment
may be executed in any number of counterparts, with the same effect as if all
the signatures on such counterparts appeared on one document. Each
such counterpart shall be deemed to be an original, but all such counterparts
together shall constitute one and the same instrument.
Section
2.3 Amendments. This
Amendment may not be amended, waived, modified, supplemented or terminated in
any manner whatsoever except by a written instrument signed by the Company and
Firebird.
Section
2.4 Binding
on Successors. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section
2.5 Invalidity. Any
provision of this Amendment that may be determined by a court of competent
jurisdiction to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section
2.6 Section
or Paragraph Headings. Section and paragraph headings used
herein are for convenience only and shall not be construed as part of this
Amendment.
Section
2.7 Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Amendment shall be determined in
accordance with the provisions of the Securities Purchase
Agreement.
[SIGNATURE PAGE
FOLLOWS]
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IN WITNESS WHEREOF, this
Amendment No. 1 has been duly executed as of the day and year first above
written.
AMARILLO BIOSCIENCES,
INC.
By: /s/ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief
Executive Officer
FIREBIRD GLOBAL MASTER FUND,
LTD.
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇
Title: Director
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